Miller v Kadir [2020] NSWCATAP 57

Miller v Kadir [2020] NSWCATAP 57

The Tribunal erred by failing to recognise and apply the statutory warranty in s 18B(c) of the Home Building Act 1989 (NSW) where the NSW Fair Trading material established, in the absence of contrary expert evidence, that the pool was constructed contrary to Australian Standards. It also erred by treating the inspector's opinion as limited to aesthetics and by failing to consider remedial or procedural options, including adjournment or work orders, in light of the established breach. Those errors of law and fact warranted allowing the appeal, setting aside the dismissal of the cross-claim, and remitting it for re-determination.

Jurisdiction
Australia
Judgment Date
02 April 2020
Procedural Posture
Appeal in a Home Building Dispute Concerning Dismissal of a Cross Claim for a Swimming Pool Defect / Appeal Panel Decision After Hearing on 16 March 2020
Outcome
Appeal upheld; dismissal of the cross-claim set aside; cross-claim remitted for re-determination by the Tribunal.
Legal Topics
['building Defect in Swimming Pool' 'statutory Warranties' 'australian Standards' 'rectification Orders' 'dismissal of Cross Claim' 'error of Law']
['home Building' 'civil and Administrative Tribunal Appeals'] ['building Defect in Swimming Pool' 'statutory Warranties' 'australian Standards' 'rectification Orders' 'dismissal of Cross Claim' 'error of Law']

Case Brief

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Procedural Posture

Appeal in a Home Building Dispute Concerning Dismissal of a Cross Claim for a Swimming Pool Defect / Appeal Panel Decision After Hearing on 16 March 2020

Legal Issues

  1. 1 ["Whether the Tribunal erred in dismissing the homeowners' cross-claim concerning the defective swimming pool." 'Whether the material before the Tribunal established that the pool was constructed contrary to Australian Standards and in breach of the statutory warranty in s 18B(c) of the Home Building Act 1989 (NSW).' 'Whether the Tribunal failed to consider appropriate remedies or procedural options after evidence of breach was before it.']

Ratio Decidendi

The Tribunal erred by failing to recognise and apply the statutory warranty in s 18B(c) of the Home Building Act 1989 (NSW) where the NSW Fair Trading material established, in the absence of contrary expert evidence, that the pool was constructed contrary to Australian Standards. It also erred by treating the inspector's opinion as limited to aesthetics and by failing to consider remedial or procedural options, including adjournment or work orders, in light of the established breach. Those errors of law and fact warranted allowing the appeal, setting aside the dismissal of the cross-claim, and remitting it for re-determination.

Court Disposition

Appeal upheld; dismissal of the cross-claim set aside; cross-claim remitted for re-determination by the Tribunal.

Orders

  • ['The appeal is upheld.' 'Order 2 made by the Tribunal on 13 December 2019 in Matter HB 19/29787 that the cross-claim proceedings be dismissed is set aside.' 'The cross claim in Matter HB 19/29787 is remitted for re-determination by the Tribunal.' 'The Tribunal is directed to list the cross claim for directions at a...